State ex rel. Shaul v. Jones, 5

• Decision Date: 17 May 1960
• Docket Number: R,No. 5,30483,Nos. 30482,5,s. 30482
• Citation: 335 S.W.2d 468
• Parties: STATE of Missouri at the relation of Gladys SHAUL, Executrix of the Estate of Christina Brooks, Deceased, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of the County of St. Louis, State of Missouri, Divisionespondent (two cases).
• Court: Missouri Court of Appeals

Page 468

335 S.W.2d 468

STATE of Missouri at the relation of Gladys SHAUL, Executrix of the Estate of Christina Brooks, Deceased, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of the County of St. Louis, State of Missouri Division No. 5, Respondent (two cases).

Nos. 30482, 30483.

St. Louis Court of Appeals, Missouri.

May 17, 1960.

Motion for Rehearing or for Transfer to Supreme Court Denied

June 13, 1960.

J. L. London, St. Louis, Louis L. Hicks, Clayton, for appellant.

Dubail, Judge & Kilker, W. Donald Dubail, St. Louis, for respondent.

RUDDY, Judge.

Two original proceedings have been filed in this court wherein relator seeks a writ of prohibition in one and a writ of mandamus in the other against respondent who is Judge of Division No. 5 of the Circuit Court of the County of St. Louis. In both proceedings relator contends that respondent has exceeded his jurisdiction in overruling relator's request for a jury trial in a case pending before respondent.

Prior to filing the suit pending before respondent a judgment was obtained against Christina Brooks for possession of property known as and numbered 2104-06 Yale Avenue, Maplewood, Missouri. In the possessory action the trial court decreed Mearl R. Cummings and Margaret Cummings to be the owners in fee of the property. Christina Brooks claimed the property on the theory of a resulting trust. Her claim was denied and she appealed. The trial court's decree and judgment was affirmed on appeal. Bennett v. Shaul et al., Mo., 318 S.W.2d 307. The case now before respondent was brought by Christina Brooks against Mearl R. Cummings and Margaret Cummings, his wife. In said case Christina Brooks sought recovery for the value of certain improvements made by the her while she was in possession of said property.

The parties agree that the action before respondent was brought pursuant to the authority and provisions of Section 524.160 RSMo 1949, 35 V.A.M.S. No question is presented concerning the sufficiency of the petition to comply with Section 524.170 RSMo 1949, 35 V.A.M.S. It is conceded that the suit was filed while Christina Brooks was in possession of said property.

Orion J. Litzinger, Sheriff of St. Louis County, was joined as a defendant in the suit pending before respondent. He was joined for the purpose of preventing him from dispossessing Christina Brooks, relator's mother. An injunction was granted staying the plaintiffs in the possessory action from taking possession of the property until the value of the improvements placed thereon was ascertained. This injunction was issued pursuant to the provisions of Section 524.180 RSMo 1949, 35 V.A.M.S.

Christina Brooks died after the filing of the suit to recover the value of the improvements. Relator herein, Gladys Shaul, was named as executrix under the will of Christina Brooks and is the sole beneficiary under said will of all real, personal and mixed property and all choses in action in said estate. After the death of Christina Brooks, relator was substituted as plaintiff in the suit pending before respondent. Thereafter, the stay order enjoining Orion J. Litzinger, Sheriff, from levying an execution and enjoining plaintiffs in the possessory action from taking possession of the property was dissolved. The defendants in the action pending before the respondent, who were plaintiffs in the possessory action, are now in possession of the aforementioned property and because of the death of Christina Brooks the injunction originally issued is no longer required. Subsequent to the death of Christina Brooks and after relator was substituted as plaintiff in the suit pending before respondent, relator filed a 'Motion for Jury Trial and to Modify Petition.' In said motion relator sought to strike from the petition the last paragraph of said petition wherein plaintiffs prayed for an injunction or restraining order against the Sheriff of St. Louis County, Missouri, Orion J. Litzinger, and the defendants, Mearl Cummings and Margaret Cummings, his wife, to halt the dispossession which was then imminent and to prevent and stay the defendants in the pending action from taking possession of the land described and the improvements until the value of said improvements made by plaintiff was ascertained. In said motion plaintiff dismissed as to Orion J. Litzinger, Sheriff of St. Louis County, Missouri, and requested a trial by jury. The motion to amend and the request for a trial by jury were overruled by the court. It is the contention of the relator that the court exceeded its jurisdiction in refusing the trial by jury and she seeks appropriate relief on this court through the petitions for prohibition and mandamus filed herein.

Relator asserts that the action pending before respondent has been stripped of all of its equitable features and is now an action to recover a money judgment and, therefore, she is entitled to a jury trial.

It will be helpful to an understanding of the statute under which relator proceeds for the recovery of the value of the improvements to review the applicable rules prior to the enactment of the statute. Under the rule of the common law the owner recovered his land without being required to pay for improvements. This was on the principle that an owner was under no obligation to pay for unauthorized improvements made on his land and one making such unauthorized improvements was not entitled to recover their value, even though he acted in good faith and under the belief he owned the land. Kisling v. Yoder, Mo., 236 S.W. 860; Montgomery v. Gahagan, 246 Mo. 310, 151 S.W. 453; 42 C.J.S. Improvements Sec. 6(a), p. 428. This rule, inflexible as it seemed was founded on the idea that the true owner should not have to pay an intruder or occupant for improvements that he did not authorize. In addition, the owner of the land was entitled to recover mesne rents and profits.

Realizing the harshness and the injustice of such a rule the chancery courts relaxed it so as to permit a defendant in an ejectment action to set off the value of improvements made by him in good faith under a bona fide belief of ownership to the extent of the rents and profits claimed, but no further. This was merely applying the familiar maxim, that he who seeks equity must do equity. This innovation upon the common law rule was to prevent the unjust enrichment of the true owner of the land. Kisling v. Yoder, supra; Montgomery v. Gahagan, supra; Stump v. Hornback, 109 Mo. 272, 18 S.W. 37. The effect of the rule was to permit a set-off or recoupment of the value of the improvements to the extent of the rents and profits demanded by the true owner, but, as we said, no further.

In limiting the occupant's recovery for the value of improvements made in good faith to the value of rents and profits, it was obvious that the lawful owner would be enriched to the extent the value of the improvements exceeded the rents and profits. To cure this defect statutes were enacted in this state and in many other jurisdictions. Kisling v. Yoder, supra; Stump v. Hornback, supra.

Supporting what we have said, as to the reason for enactment of the statutes, is a statement contained in Montgomery v. Gahagan, supra, (151 S.W. loc. cit. 455) wherein the court said:

'In our own state this right of recoupment was not considered broad enough to permit the doing of justice in all cases, inasmuch as it afforded the occupant no relief, except out of the rents and profits, while it was thought that in those cases in which the occupants make improvements not only in good faith, believing themselves to have good title, but not having any notice of the title or claim asserted by the true owner, they should have a broader and more complete remedy. To meet this supposed want, the law was enacted which is now embodied in section 2401 and following, of the Revised Statutes of 1909. (Now Sec. 524.160 and following of the Revised Statutes of Missouri 1949, 35 V.A.M.S.) That this law was not intended to take away any remedy that had theretofore existed but to afford a more complete remedy out of the body of the improved estate in those cases that come within its provisions, is settled by numerous adjudications in this state.' (Parenthesis supplied.)

The general effect of the statutes is to compel the owner of the land to pay to the defendant against whom a decree of dispossession has been given, compensation for all improvements made by him in good faith on said property, prior to notice of the owner's adverse title, as a condition to the owner's recovery of, or entry on, the land. 42 C.J.S. Improvements Sec. 6(b), p. 430. The occupant dispossessed is no longer limited in the amount of his recovery to the value of rents and profits.

Respondent contends that the statutes are but declaratory of the common law on the subject of the right of the occupant to the value of the improvements and that the statutes merely enlarge the rights of the dispossessed occupant. Under the common law the right of an occupant to recover the value of the improvements, at least to the extent of the rents and profits found in favor of the lawful owner, originated in the chancery courts and a proceeding to recover the value of the improvements was considered an equitable proceeding. An action brought under the authority of the provisions of Section 524.160 RSMo 1949, 35 V.A.M.S., has frequently been described as equitable. Lester v. Tyler, Mo., 69 S.W.2d 633; Stump v. Hornback, 109 Mo. 272 18 S.W. 37; Russell v. Defrance, 39 Mo. 506; 42 C.J.S. Improvements Sec. 6(b), pp. 430, 431, Sec. 14(a), p. 453. However, in the case of Russell v. Defrance, supra, a jury trial was had on the issue of the value of the improvements.

In many other cases the issue of the value of improvements made by one dispossessed was tried by a jury. See Sutton v. Anderson, 326 Mo. 304, 31 S.W.2d 1026; Anderson v. Sutton, 301 Mo. 50, 254 S.W. 854; Story v. August, Mo.App., 10 S.W.2d 965; ...